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HomeMy WebLinkAbout02-2859MARY ELIZABETH ESLER Plaintiff V. JOHN W. M. OSBORNE Defendant : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW :NO. gS),:P- ,:~ ~dS-q CIVIL TERM : 1N DIVORCE NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are wamed that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other fights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at the Cumberland County Court House, High and Hanover Streets, Carlisle. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Phone: (717) 249-3166 MARY ELIZABETH ESLER Plaintiff JOHN W. M. OSBORNE Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW i NO. Oc:d- ,~ FOe"cfi~ CIVIL TERM : IN DIVORCE COMPLAINT UNDER SECTION 3301(c) or 3301(d) OF THE DIVORCE CODE 1. Plaintiff is Mary Elizabeth Esler, who currently resides at 20 Eastwick Lane, Carlisle, Cumberland County, Pennsylvania 17013, since June 11,2001. 2. Defendant is John W. M. Osborne, who currently resides at 152 East High Street, Carlisle, Cumberland County, Pennsylvania 17013, since December 1995. 3. Plaintiffand Defendant have both been bona fide residents in the Commonwealth for at least six months immediately previous to filing of this Complaint. 4. Plaintiff and Defendant were married on January 5, 1991, in Bethlehem, Lehigh County, Pennsylvania. 5. There have been no prior actions of divorce or for annulment between the parties hereto in this or any other jurisdiction. 6. The marriage is irretrievably broken. 7. Plaintiffhas been advised that counseling is available, and that Plaintiffmay have the right to request that the Court require the parties to participate in counseling. 8. Plaintiff requests the Court to enter a Decree of Divorce. ANDREWS & JOHNSON By: ~ h'(tomey for Plaintiff 78 W. Pomfret Street Carlisle, PA 17013 (717) 243-0123 I verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unswom falsification to authorities. Date: ,20O2- ' Mary Eli~/abeth'~ler, Plaintiff MARY ELIZABETH ESLER Plaintiff JOHN W. M. OSBORNE Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-2859 CIVIL TERM IN DIVORCE MARITAL SETTLEMENT AGREEMENT AGREEMENT, made this o,-7~ day of ~/g/~, 2003, between MARY ~LIZABETH ESLER (hereinafter called Wife ) and JOHN W. 1~. OSBORNE (hereinafter called Husband ). WITNESSETH: The parties hereto are Wife and Husband, having been married on January 5, 1991, at Bethlehem, Lehigh County, PA. There were no children born of this marriage. Di3erse unhappy differences, disputes and difficulties have arisen between the parties and it is the intention of Wife and Husband to live separate and apart for the rest of their natural lives, and the parties hereto desire to settle fully and finally their respective financial and property rights and obligations as between each other, including without limitation: (I) the settling of all matters between them relating to the ownership of real and personal property; (2) the settling of all matters between them relating to the past, present and future support and/or maintenance of Wife by Husband and of Husband by Wife; (3) in general, the settling of any and all claims and possible claims by one against the other or against their respective estates. NOW THEREFORE, in consideration of the premises and of the mutual promises, covenants and tmdertakings hereinafter set forth and for other good and valuable consideration, receipt of which is hereby acknowledged by each of the parties hereto, Wife and Husband, each intending to be legally bound hereby, covenant and agree as follows: 1. ADVICE OF COUNSEL The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, Taylor P. Andrews, Esquire, for Wife, and Carol L. Lindsay, Esquire, for Husband. Each party acknowledges that she or he has received independent legal advice from counsel of her or his selection and that each fully understands the facts and has been fully informed as to her or his legal rights and obligations and each party acknowledges and accepts that this Agreement is, in the circumstances, fair and equitable and that it is being entered into freely and voluntarily, after having received such advice and with such knowledge and that execution of this Agreement is not the result of any duress or undue influence and that it is not the result of any collusion or improper or illegal agreement or agreements. 2. PERSONAL RIGHTS Wife and Husband may and shall, at all times hereafter, live separate and apart. Each shall be free from all control, restraint, interference or authority, direct or indirect, by the other in all respects as fully as if she or he were umnarried. Each may reside at such place or places as she or he may select. Each may, for her or his separate use or benefit, conduct, carry on and engage in any business, occupation, profession or employment that to her or him may seem advisable. This provision shall not be taken, however, to be an admission on the part of either Wife or Husband of the lawfulness of the causes that led to, or resulted in, the continuation of their living apart. Wife and Husband shall not molest, harass, disturb or malign each other or the respective families of each other, nor compel or attempt to compel the other to cohabit or dwell by any means or in any manner whatsoever with her or him. 3. PERSONAL PROPERTY Wife and Husband do hereby acknowledge they have heretofore divided the marital property, including, but without limitation, jewelry, clothes, furniture and other personalty, and hereafter, Wife agrees that all of the property in the possession of Husband shall be the sole and separate property of Husband; and, Husband agrees that all property in the possession of Wife shall be the sole and separate property of Wife. Each of the parties does hereby specifically waive, release, renounce and forever abandon whatever claims, if any, she or he may have with respect to any of the above items which are the sole and separate property of the other. 4. REAL PROPERTY Wife hereby agrees to convey, transfer and grant to Husband her right, title and interest in the real estate situated and located at 152 E. High St., Carlisle, PA. From the date of this Agreement, Husband agrees to assume as his sole obligation any and all mortgage payments, taxes, claims, damages or other expenses incurred in connection with said premises, and Husband agrees and covenants to hold Wife harmless from any such liability or obligation. Wife shall make this conveyance at such time as Husband shall refinance the mortgage on the premises or taken other action to have Wife's liability on the mortgage loan eliminated. If there are deferred payments due to Wife from Husband at the time of this conveyance, Husband shall give Wife a promissory note for the deferred payments and a mortgage against the premises to secure payment on the note. Wife shall agree to subordinate the note and mortgage to a first mortgage, provided that the first mortgage shall not be securing an obligation that exceeds ninety-five percent (95%) of the appraised value of the property at the time of the transfer. 5. PAYMENTS BETWEEN THE PARTIES To accomplish a division of the marital property that the parties agree to be equitable Husband shall pay ninety thousand seven hundred ($90,700.00) dollars to Wife by making the following payments: $47,650 has been paid prior to January 2003; $1,050 was paid in January 2003; $ 2,000 was paid in February 2003; $13,000 to be paid in March 2003; $17,000 to be paid by June 1, 2003; $ l 0,000 to be paid in 8 semiannual installments of $1,250, with the first payment due by June 30, 2003 and each succeeding payment due by June 30 and December 31 of succeeding year. No interest shall be paid on the deferred installment payments. 6. SUPPORT Husband and Wife do hereby waive, release and give up any rights they may respectively have against the other for alimony, support or maintenance. It shall be, from the date of this Agreement, the sole responsibility of each of the respective parties to sustain themselves without seeking any support from the other party. 7. LIABILITIES Each party represents that they have not contracted any debt or liability for the other for which the estate of the other party may be responsible or liable, and that except only for the rights arising out of this Agreement, neither party will hereafter incur any liability whatsoever for which the other party or the estate of the other party, will be liable. Each party agrees to indemnify or hold the other party harmless from and against all future obligations of every kind incurred by them, including those for necessities. Husband agrees to pay all of the mortgage payments and to indemnify Wife and hold her harmless for any claim by the mortgage company for the real estate located at 152 E. High St., Carlisle, PA 17013. 8. DIVORCE Wife has commenced a Divorce action in the Court of Common Pleas of Cumberland County and the action is docketed as indicated at the head of this agreement. Both parties agree to sign consents for the entry of a divorce decree that shall incorporate though not merge the terms of this agreement. Each party shall sign a consent and waiver of notice of intent to seek a decree at the same time that the party shall sign this agreement. The signed consent and waiver of Husband shall be delivered to Wife's attorney so that this case may be transmitted to the Court for a decree. This Agreement shall not be considered to affect or bar the right of Wife or Husband to a limited or absolute divorce on lawful grounds if such grounds now exist or shall hereafter exist or to such defense as may be available. It is agreed that this Agreement shall not be impaired by any divorce decree which may be granted but shall continue in full force mad effect notwithstanding the granting of any such decree. This Agreement is not intended to condone and shall not be deemed to be a condonation on the part of either party hereto of any act or acts on the part of the other party which have occasioned the disputes or unhappy differences which have occurred prior to or which may occur subsequent to the date hereof. 9. MUTUAL RELEASE Wife and Husband each do hereby mutually remise, release, quitclaim and forever discharge the other and the estate of such other, for all time to come, and for all purposes whatsoever, of and from any and all rights, titles and interests, or claims in or against the property (including income and gain from property hereafter accruing) of the other or against the estate of such other, of whatever nature and wheresoever situate, which she or he now has or at any time hereafter may have against the other, the estate of such other or any part thereof, whether arising out of any former acts, contracts, engagements or liabilities of such other or by way of dower or curtesy, or claims in the nature of dower or curtesy or widow's or widower's rights, family exemption or similar allowance, or under the intestate laws, or the right to take against the spouse's will; or the right to treat a lifetime conveyance by the other as testamentary, or all other rights ora surviving spouse to participate in a deceased spouse's estate, whether arising under the laws of (a) Pennsylvania, (b) any State, Commonwealth or territory of the United States, or (c) any other country, or any rights which Wife may have or at any time hereafter have for past, present or future support or maintenance, alimony, alimony pendente lite, counsel fees, costs or expenses, whether arising as a result of the marital relation or otherwise, except, and only except, all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any thereof. It is the intention of Wife and Husband to give to each other by the execution of this Agreement a full, complete and general release with respect to any and all property of any kind or nature, real, personal or mixed, which the other now owns or may hereafter acquire, except and only except all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any thereof, subject, however, to the implementation and satisfaction of the conditions precedent as set forth herein above. 10. OTHER DOCUMENTATION Wife and Husband covenant and agree that they will forthwith (and within at least 15 days after demand therefore) execute any and all written instruments, assignments, releases, satisfactions, deeds, notes or such other writings as may be necessary or desirable for the proper effectuation of this Agreement, and as their respective cotmsel shall mutually agree should be so executed in order to carry out fully and effectually the terms of this Agreement. 1 I. SUCCESSORS' RIGHTS AND LIABILITIES This Agreement shall, except as otherwise provided herein, be binding upon and inure to the benefit of the parties hereto, their respective heirs, executors, administrators, successors or assigns. 12. ENTIRE AGREEMENT Wife and Husband do hereby covenant and warrant that this Agreement contains all of the representations, promises and agreements made by either of them to the other for the purposes set forth in the preamble hereinabove; that there are no claims, promises or representations not herein contained, either oral or written, which shall or may be charged or enforced or enforceable anless reduced to writing and signed by both of the parties hereto; and the waiver of any term, condition, clause or provision of this Agreement shall in no way be deemed to be considered a waiver of any other term, condition, clause or provision of this Agreement. 7 13. BINDING EFFECT AND ENFORCEMENT OF AGREEMENT This Agreement shall remain in full force and effect unless and until terminated pursuant to the terms of this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. This Agreement does not limit the remedies of either party available in the event of a breach of the agreement. If one party must seek action by the Court to enforce the agreement or to seek damages for the other party's breach of the agreement, the prevailing party shall be entitled to collect from the other party reasonable counsel fees actually incurred. 14. SEPARABILITY If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law, or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement and in all other respects this Agreement shall be valid and continue in full force, effect and operation. Likewise, the failure of any party to meet her or his obligations under any one or more of the paragraphs herein, with the exception of the satisfaction of the conditions precedent, shall in no way avoid or alter the remaining obligations of the parties. 15. NOTICE PROVISIONS (a) Notice to Husband shall be sent by first class mail to 152 E. High St., Carlisle, PA 17013, and Carol L. Lindsay, Esquire, 26 W. High St., Carlisle, PA 17013, or such other address as Husband from time to time may designate in writing. (b) Notice to Wife shall be sent by first class mail to 4066 Darius Dr., Enola, PA 17025, and Taylor P. Andrews, Esquire, 78 W. Pomfret St., Carlisle, PA 17013, or such other address as Wife from time to time may designate in writing. 16. HEADINGS Any headings preceding the text of the several paragraphs and subparagraphs hereof are inserted solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect its meanings, construction or effect. 17. EFFECTIVE DATE The effective date of this Agreement shall be the date upon which it is executed. 18. CONTROLLING LAW This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. This Agreement is executed in duplicate, and in counterparts, and Wife and Husband, as part~~--~~e th~eceipt of a duly executed copy hereof. /~hn W. M. Osborne COMMONWEALTH OF PENNSYLVAN/A ) : SS. COUNTY OF CUMBERLAND ) Onthis, the ~5 dayof -~Jc~"'-~-~-' ,2003, before me, the subscriber, a Notary Public for the Commonwealth of Pennsylvania, residing in the County of Cumberland, personally appeared Mary Elizabeth Esler and in due form of law acknowledged the above Agreement to be her act and deed and desired the same to be recorded as such. NOTARIAL SEAL ~ SHELLY SEXTON, Notary Pub~lo Carlisle Boro, Cumberland County My Commlesion Expires April 26, 2007 COMMONWEALTH OF PENNSYLVANIA ) :SS. COUNTY OF CUMBERLAND ) On this, the ~ day of ~ ,2003 before me, the subscriber, a Nolary Public for the CommonwealthVof Pennsylvania, residing in the County of Cumberland, personally appeared John W. M. Osborne and in due form of law acknowledged the above Agreement to be his act and deed and desired the same to be recorded as such. NOTARIAL SE-AL DI L, L'E.N K~-P, NOTARY pUBLIC KAN __ ~t t'~BERLAND COUNTY / ~.~ARLISLE BORL):~,~o FEBRUARY 20, 20(75 1 MARY ELIZABETH ESLER Plaintiff JOHN W. M. OSBORNE Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-2859 CIVIL TERM IN DIVORCE AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA ) : COUNTY OF CUMBERLAND ) AND NOW, this ~ day of June 2002 I, Taylor P. Andrews, Esquire, attorney for Mary Elizabeth Esler, Plaintiff in the ab-- - ore-captioned action, hereby swear that I have served a tree copy of the Complaint in Divorce, with Notice to Defend and Claim Rights, executed by the Plaintiff in the above- captioned matter, upon the Defendant at his residence at 152 East High Street, Carlisle, PA 17013, by depositing the same in the U.S. Mail, postage prepaid, certified, deliver to addressee only, return receipt requested. A copy of the return receipt card signed by the Defendant on June 18, 2002, indicating service was effected, is marked Exhibit "A", attached hereto and made a part hereof. ~gney for Plaintiff S~rn and subscribed to before me this NOTARIAL SEAL SHELLY SEXTON, NOTARY PLISUC CARLISLE BORO, CIJMSERLAND COUNTY MY COMMISSION EXPIRES APRIL 26, 2003 Member, Pennsylvania Association of Notaries Complete items 1, 2, and 3. Also complete .~ved by.~ Pr/hr ! Print ~our name and address on the reverse so tha~we can return tt~e card to you. Attach~his card to the back of the mallpiece, , r3 Agent or on t~l~ front if space permits. ~ ressee 2. Article Numper (Transfer from se~lce /abe0 PS Form 3811, Mamh 2001 Domsstic Return Receipt 3. ce Type ~ViC~ified Mail [] Express Mail [] Registered ;~Retum Receipt for Merchandise [] Insured Mail [] C.O.D. 4. Restated Delivery? (F_x~a Fee) ~Yes Exhibit A MARY ELIZABETH ESLER Plaintiff JOHN W. M. OSBORNE Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-2859 CIVIL TERM IN DIVORCE AFFIDAVIT OF CONSENT 2002. 1. A Complaint in Divorce under Section 3301 (c) of the Divorce Code was filed on June 12, 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days have elapsed from th~ date of filing the Complaint. 3. I consent to the entry of a final decree of divome after service of notice of intention to request entry of the decree. I verify that the statements made in this Affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. MARY ELIZABETH ESLER Plaintiff JOHN W. M. OSBORNE Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 02-2859 CIVIL TERM : IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER § 3301(c) OF THE DIVORCE CODE 1. I consent to the entry ora final decree of divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the Prothonotary. I verify that the statements made in this Affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. Date: ~ ~L~ )003 MARY ELIZABETH ESLER, VS. JOHN W. M. OSBORNE, Plaintiff Defendnat : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 02 ~2859 CIVIL TERM : IN DIVORCE AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under §3301(c) of the Divorce Code was filed on June 12, 2002. 2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the date of filing and service of the Complaint. 3. I consent to the entry of a final Decree in Divorce after service of notice of intention to request entry of the Decree. I verify that the statements made in this Affidavit are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. //JohnW..Osborne, Defendant SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High S~reet Carlisle, PA MARY ELIZABETH ESLER, VS. JOHN W. M. OSBORNE, Plaintiff Defendnat : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 02- 2859 CIVIL TERM : IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVt;;:)RCE DECREE UNDER §3301(c) OF THE DIVORCE CODE 1. I consent to the entry of a final Decree of Divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a Divorce Decree is entered by the Court and that a copy of the Decree will be sent to me immediately after it is filed with the Prothonotary. I verify that the statements made in this Affidavit are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 4904 relating to unswom falsification to authorities. / / John W. M. Osborne, Defendant SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA MARY ELIZABETH ESLER Plaimiff JOHN W. M. OSBORNE Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 02-2859 CIVIL TERM : IN DIVORCE PRAECIPE TO TRANSMIT RECORD TO THEPROTHONOTARY: Transmit the record, together with the following information, to the Court for entry of a divorce Ground for divome: irretrievable breakdown under Section 3301 (c) of the Divorce Code. Date and manner of service of the complaint: June 19, 2002 by restricted, certified mail. Date of execution of the affidavit of consent required by Section 3301(c) of the Divome Code: 5. June 27. 2003. by the Plaintiff June 25, 2003; by Defendant June 26, 2003. Related claims pending: None. Date Plaintiff's Waiver of Notice in §3301(c) Divorce was filed with the Prothonotary: June 27, 2003. Date: June 27, 2003 Date Defendant's Waiver of Notice in §330 l(c) Divorce was filed with the Prothonotary: ANDREWS & JOHNSON By: T~ 78 Wt,.~Pomffet Street Carlisle, PA 17013 (717) 243-0123 Supreme Court ID No. 15641 IN THE COURT OF CUMBERLAND STATE OF ~ OF COMMON COUNTY PENNA. PLEAS Plaintiff Versus ..... John W~---M~ Os-borneg; ............ ........ D~fendant . DECREE IEN DIVORC .~1.4~...~. .............. X~. 2.0.03, it is ordered and AND NOW,. decreed that ........~.a.~.¥..E.Z.i.z..a.b,e.t.h...~.s.~.9.r ................... plaintiff, and ................. ~. ?.h.n..w.:..~.... 9.s.bp.~..n.e .................... defendant, are divorced from the bonds of matrimony. The court retains jurisdiction of the following claims which have been raised of r~cl0~r~.,.~ this action for which a final order has not yet been entered; Prothonotary £o- ,hi. L